HQ 225620 - Protest and Application for Further Review No. 2809-93-101787; deemed liquidation by operation of law; 19 U.S.C. 1504(d); Nunn Bush Shoe Co. v. United States - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1995 HQ Rulings > HQ 225339 - HQ 226123 > HQ 225620

Previous Ruling Next Ruling
HQ 225620

March 1, 1995

LIQ-4-01-CO:R:C:E 225620 CC

CATEGORY: LIQUIDATION

District Director
U.S. Customs Service
P.O. Box 2450
San Francisco, CA 94126

RE: Protest and Application for Further Review No. 2809-93-101787; deemed liquidation by operation of law; 19 U.S.C. 1504(d); Nunn Bush Shoe Co. v. United States

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

Customs records show that the entry the subject of this protest was made on November 30, 1988. The merchandise entered was 3.5 inch microdisks and coated media from Japan.

The merchandise at issue was the subject of an antidumping investigation (case A-588-802). In Notice of Preliminary Determination, published in the Federal Register on September 29, 1988 (53 FR 38045), Customs was instructed to suspend liquidation of the subject merchandise entered on or after the date of publication. The Department of Commerce issued instructions to Customs, in a telex dated September 10, 1992, that suspension of liquidation for the subject merchandise was lifted. Instructions for liquidating the subject merchandise were issued to the field by the Customs Information Exchange by C.I.E. N-41/88, supplement #10, dated September 23, 1992.

The subject entry was liquidated on May 14, 1993. Customs made a Formal Demand on Surety on August 2, 1993 for payment of the subject duties. This protest was timely filed within 90 days of that action on October 28, 1993 in response to the demand.

ISSUE:

Whether the subject entry was deemed liquidated by operation of law pursuant to 19 U.S.C. 1504(d)?

LAW AND ANALYSIS:

Liquidation of an entry constitutes the final computation by Customs of all duties (including any antidumping or countervailing) accruing on that entry. See generally, Ambassador Division of Florsheim Shoes v. United States, 748 F.2d 1560, 1562 (Fed. Cir. 1984). The Customs Procedural Reform and Simplification Act of 1978 provides in section 209(a), 19 U.S.C. 1504, that an entry is deemed liquidated as entered if Customs has not liquidated the entry within one year from the date of entry or withdrawal from warehouse. Customs is permitted to extend the one year period, under 19 U.S.C. 1504(b), if liquidation is suspended by statute or court order. The subject entry was suspended pursuant to 19 U.S.C. 1673, pending the results of an antidumping administrative review.

In addition, 19 U.S.C. 1504, in relevant part states the following:

(d) Limitation - Any entry of merchandise not liquidated at the expiration of four years from the applicable date specified in subsection (a) of this section, shall be deemed liquidated at the rate of duty, value, quantity, and amount of duty asserted at the time of entry by the importer of record, unless liquidation continues to be suspended as required by statute or court order. When such a suspension of liquidation is removed, the entry shall be liquidated within 90 days therefrom.
The protestant claims that the subject entry was liquidated by operation of law, as entered, because suspension of liquidation was lifted with the publication of the final results in the Federal Register on December 23, 1991, and liquidation occurred over four years after the entry date. In addition, the protestant protests, pursuant to the Tariff Act of 1930, 0.00% was made.

In Nunn Bush Shoe Co. v. United States, 784 F. Supp. 892 (CIT 1992), entries had been suspended pursuant to an administrative review of countervailing duties on the merchandise. The suspensions were lifted prior to the fourth-year anniversaries of the entries, and Customs did not liquidate those entries until after the fourth-year anniversaries had passed. The Court held that the entries were deemed liquidated by operation of law when they became four years old, stating "[s]ection 1504 unambiguously states that if an entry is not liquidated within four years, then it will be deemed liquidated by operation of law unless the period is extended as per 19

The factual situation here is similar to that of Nunn Bush. The entry was made on November 30, 1988 and liquidation was suspended pursuant to administrative review of antidumping duties on the merchandise. Suspension of liquidation is lifted when Customs receives instructions from the Department of Commerce. See, HQ 224778 of December 23, 1993. Here, the suspension of liquidation occurred on September 10, 1992, which was prior to the fourth-year anniversary of date of entry. Customs did not liquidate the entry until May 14, 1993, over four years after the entry date. Consequently, based on Nunn Bush, the entry was deemed liquidated by operation of law on the fourth-year anniversary of the entry date, which was November 30, 1992.

The protestant contested, in the alternative, antidumping duty increases when a "cash deposit" of 0.00% was made. Since the protestant prevailed on the issue of deemed liquidation, the issue regarding assessment of dumping margins need not be addressed because additional duties cannot be assessed on this entry.

Finally, we note that 19 U.S.C. 1504(d) was amended by section 641, title VI - Customs Modernization, Public Law 103-182, the North American Free Trade Agreement Implementation Act (107 Stat. 2057), enacted December 8, 1993. Title VI of Public Law 103-182 took effect on the date of enactment of the Act (section 692 of the Act). Since entry and liquidation occurred prior to the date of enactment, clearly the amended law does not apply in this instance.

HOLDING:

The subject entry is deemed liquidated, pursuant to 19 U.S.C. 1504 and Nunn Bush, on the fourth-year anniversary of the entry date. Consequently, the protest should be ALLOWED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

Previous Ruling Next Ruling